No faith in the integrity in the Canadian Judicial Council says retiring judge. Council overruled its own multi-million dollar decision process.

A Canadian Judicial Council inquiry committee has found Ontario Superior Court Justice Ted Matlow guilty of misconduct,... and then not.

In 2008, Matlow was the subject of a million-dollar public inquiry where the council backtracked on a recommendation to strip him of his job.

An initial five-member panel found Matlow’s involvement in a citizens’ battle against city hall was at odds with his role as a Superior Court judge and rendered him unfit for office.

But then a full public inquiry, made up of 21 chief justices and associate justices from across the country, overruled the decision. The full council found Matlow, 74, guilty of misconduct for using his judicial title for personal gain and “intemperate” language, but said this did not warrant his removal from the bench.

Matlow claims he was found guilty of “trivial” things and that his actions never amounted to judicial misconduct — he says the council overruling its own decision proves there are problems with its processes.

“I did not speak out earlier because I feared that I might be met with further consequences. I now have only 15 days to work and I no longer have reason to fear any retaliation,” he said.

Norman Sabourin, the council’s executive director, defended the council’s actions and said some of Matlow’s criticisms were “certainly surprising.”

“All council members who reviewed the matter came to a view that Justice Matlow engaged in behaviour unbecoming a member of the judiciary,” Sabourin said.

The council “is determined to ensure that any allegation of inappropriate conduct by judges is taken seriously and reviewed fulsomely, with sanctions to follow in appropriate cases. This is what took place in the Matlow matter,” Sabourin said.

Speaking publicly for the first time since the inquiry, Matlow said his 33-year judicial career was shadowed by the council’s “horrendous” public investigation into his involvement leading a crusade to stop a condo development in his Toronto neighbourhood.

“In my case, I think they did a terrible job. My case should not have consumed the time, effort and money that it did,” Matlow said.

“If a judge receives a bribe, robs a bank, or does terrible things, like insults litigants or sexist things, then I think that would legitimately lead to recommendation for removal,” Matlow said, but he questioned being stripped of office for challenging a neighbourhood development.

As a law student, Matlow was a driving force in the abolition of the death penalty. As a federal judge, he presided over some of the biggest fraud cases in the country and was praised in the media for going to extreme lengths to expose suspected police corruption in his courtroom. He has been the editor of a national law journal since 1977.

Matlow wants a full review of the council’s powers, ordinary people sitting on its inquiries, more transparency into its processes and said judges who are found guilty of misconduct should not automatically be entitled to have their legal fees paid by taxpayers — as is the case under current legislation.

Had his case been dealt with “intelligently and sensibly” it never would have proceeded, he said. “Even at worse, if I had used intemperate language, it did not justify getting me to go on a leave of absence for two years, while paying my $300,000 salary, and then spending millions of dollars to try and get me removed from the bench,” he said.

Matlow has estimated the full cost of his inquiry to be up to $4 million, but Sabourin disputed this and said he would be surprised if the cost exceeded $1 million.

At the end of the public inquiry into Matlow, several members of the council were of the view that he should still be removed from office, Sabourin said.

“The decision of the council was that no recommendation for removal should be made, on the basis that Justice Matlow belatedly acknowledged that his behaviour had been inappropriate,” Sabourin said.

Matlow got into trouble over his role in the early 2000s leading a community group that fought to stop a condominium complex being built on his dead-end street in Forest Hill. He lobbied politicians (including the attorney general) and tried to stir up media coverage against city hall, claiming the project was illegally authorized because it had grown in size and exceeded zoning bylaws.

Matlow continued to preside over legal cases involving the city during his fight. In 2005, when he ruled against the city in a high-profile but unrelated case, he was also privately continuing to push for media coverage of the condo battle. The city’s legal department filed a complaint to the judicial council claiming he was biased.

The council convened a panel, which reviewed the complaint and found that Matlow’s “inexcusable” misconduct rendered him unfit for office.

The panel said his activities, which included publicly suggesting city officials had been devious, stupid and dishonest, breached a judge’s ethical responsibilities and diminished public confidence in the impartiality of the justice system.

A full council inquiry was then called where the majority overruled the decision to strip Matlow of office. He was found guilty of misconduct for offering legal advice to the community group, for using intemperate language in the media, such as claiming city hall’s lawyer should not have passed law school, and for using the prestige of office to advance his private interests.

The council found Matlow’s “inappropriate and unacceptable actions” placed him in a position incompatible with the due execution of office, but it said the test for recommending his removal from the bench had not been met.

Matlow is one of only 11 judges to have faced a public inquiry in Canada — representing fewer than 0.5 per cent of all complaints lodged with the council.

He was ordered to comply with binding conditions, including apologizing to the city’s legal department, the attorney general and others, undergoing a judicial ethics course at the National Judicial Institute and seeking approval from the council before participating in any public debate in the future.

Matlow said he wrote the letters of apology, but he never knew what he was apologizing for. The ethics course he was ordered to attend was not available for more than two years after he returned to duty, which, Matlow said, defeated its purpose as a rehabilitation program.

“I acknowledge that I probably went overboard in some of the things that I said, but so what? That’s not judicial misconduct,” he said.

Despite everything that happened, Matlow said he still believes he had the right to fight against the condo development and that he could not have lived with himself if he had not.

“I never denied I did all of the things that were alleged. My defence was that I was entitled to do it,” he said. “I thought I had a legitimate right to say that the city was doing something wrong and just because I was a judge, it didn’t mean I should roll over and just let it happen.”

During the investigation, the council did not address the question of whether or not he was right in his fight against the city, Matlow said.

Ironically, the proposed condominium was never built. The parking lot on the corner of Thelma Ave. is still there.

AS ORGINALLY REPORTED BY LAW TIME 2008

A Canadian Judicial Council inquiry committee has found Ontario Superior Court Justice Ted Matlow guilty of misconduct, and that there are grounds for his removal from judicial office.

The inquiry committee concludes that Justice Matlow’s conduct is so manifestly and totally contrary to the impartiality, integrity, and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, have been undermined, rendering the judge incapable of performing the duties of his judicial office,” the 65-page committee report, released last week, reads.

“Accordingly, the inquiry committee expresses the view that a recommendation for removal of Justice Matlow from office is warranted.”

Matlow, speaking through his assistant, tells Law Times that he has no comment on the report.

His lawyer, Paul Cavalluzzo of Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, says he will file a written response to the CJC regarding the report, and will appear before the council to comment on it. Matlow, a 68-year-old judge with 27 years of experience, has 30 days to file that response.

The council will make its recommendation to Minister of Justice Rob Nicholson on whether Matlow should be removed from office after hearing the judge’s response. A federal judge can only be removed from office through a joint resolution of Parliament.

Cavalluzzo says the inquiry committee in its report applied an “antiquated view” of a judge’s role in contemporary society.

“In this case, we had a judge who acted along with his neighbours, and at the end of the day it would seem to me that the neighbours and the public would have more respect for a judge for the kind of paricipation that Judge Matlow engaged in, rather than the opposite,” he says.

Cavalluzzo says the punishment Matlow faces is “totally not proportionate with the conduct alleged, even if there is room for criticism.”

Norman Sabourin, executive director and senior general counsel for the CJC, tells Law Times that there have been eight inquiry committees since the council was created in 1971. The council is currently dealing with two ongoing cases: the Matlow case and a matter involving Ontario Superior Court Justice Paul Cosgrove.

The council’s history suggests this isn’t the end of the line for Matlow. In 2003, the council disagreed with an inquiry committee’s finding that Quebec Superior Court Justice Jean-Guy Boilard had acted improperly. However, in that case the committee had not recommended the judge’s ouster. Both the Boilard and Matlow matters involve questions of judges’ recusing themselves from cases.

Sabourin says the CJC has only once recommended to the minister of justice that a judge be removed — a 1996 case involving Superior Court of Quebec Justice Jean Bienvenue, who resigned before he was officially removed from office.

The rare CJC inquiry committee hearing — conducted in January, with a subsequent sitting held in April, after the committee requested further evidence from court staff — came about after City of Toronto solicitor Anna Kinastowski filed a complaint in 2006.

The complaint was regarding Matlow’s decision to sit in 2005 on a three-judge panel that unanimously ruled against a city proposal for a streetcar right-of-way on St. Clair Avenue, a case known as the SOS case.

Kinastowski alleged that the veteran judge shouldn’t have sat on the panel because he was involved with a community group called Friends of the Village, which had opposed a development project proposed by the City of Toronto and a developer in 1999 known as the Thelma Project. The development was planned for an area near Matlow’s home.

At the January inquiry hearing, Matlow said he made an “error in judgment” in sitting on the SOS case, but not an error in law. He said he remained impartial during the case: “I had no views about the merits of it . . . I didn’t care at all what was going to happen,” he told the hearing.

The supernumerary judge who hasn’t been sitting on cases since April 2007 also told the hearing that he hoped to return to the bench in the future.

It found that, by failing to remove himself from sitting on any cases involving the City of Toronto after becoming a leader of Friends of the Village, “Justice Matlow has failed in the due execution of the office of judge.”

The committee also found that because Matlow in October 2005 had renewed his allegations of the city misconduct even after the community group had ceased operations while at the same time hearing the SOS application, he “has placed himself in a position incompatible with the due execution of the office of judge and has been guilty of misconduct.”

The committee’s report goes on to say that Matlow’s expressions of regret were of “limited nature,” and failed to change their view of his actions. The report states that Matlow failed to follow “generally accepted ethical standards for judges,” and suggested that it seemed he wouldn’t act differently in the future.

“Justice Matlow’s currently expressed views as to the propriety of his conduct at the time, and his current views as to conduct appropriate for a judge who becomes concerned about what he or she perceives as misconduct in public office, indicate little or no prospect that Justice Matlow would conduct himself differently in the future,” states the report.

At the inquiry, Matlow said he knew his decision to sit on the SOS case was something many other judges wouldn’t have done, but said, “Every judge has to use his own discretion,” as they are not subject to any specific code of ethics. He said the decision reflected his desire to “fulfill my own concept of a decent human being and judge.”

Matlow said he saw no similarities between the project he had opposed as part of Friends of the Village and the SOS case.

He added that he believed counsel for the city acting on the SOS case knew of his involvement with Friends of the Village, and would have expressed any concerns about his sitting on the case, but did not do so.

But Matlow admitted that he would have acted differently on the matter in some ways.

He told the hearing that he shouldn’t have given documents to the Globe and Mail regarding his criticism of the Thelma Project — which included criticism of city lawyers — a day before sitting on the panel that heard the SOS case.

Matlow said he renewed his opposition to the Thelma Project at that time because of the release of a report on the MFP computer-leasing scandal at the City of Toronto. He told the hearing that he was “struck by the similarity” between the Thelma Project and MFP.

Sabourin, speaking at press time, says the council has not received any response from Matlow or his lawyer regarding the report’s findings.

“The key decision, obviously, will be when the council deliberates the report and at that time will of course take into account any submissions Justice Matlow wishes to make, and any submission by the independent counsel,” says Sabourin.

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